While cities like San Jose are encouraging more housing under Senate Bill 9, Cupertino plans to ban basements, prevent duplexes from being converted to condos and limit new homes to 2,000 square feet — a move that housing advocates say may violate state law.
SB 9, which goes into effect Jan. 1, allows property owners to build a second home on their lot or divide it into two and place duplexes on each. Over the last month, cities have been passing ordinances to implement the law by creating objective design standards and rules.
After Cupertino indicated its plans to go “as strict as possible,” Rafa Sonnenfeld, a paralegal with YIMBY Law, said he was “pleasantly surprised” with the ordinance crafted by city officials.
However, the Cupertino City Council — which voted 4-1 on Tuesday night with Councilmember Hung Wei opposed — “undermined” that by suggesting rules YIMBY Law believes are illegal.
The council opted to restrict new homes built under SB 9 to be no larger than 2,000 square feet.
“I don’t want people to abuse this process to build a mansion,” Vice Mayor Liang Chao said.
But Sonnenfeld said the provision could violate the Housing Crisis Act of 2019 because it may constitute downzoning — reducing the amount or square footage of housing that could have previously been allowed on the lot.
In October, YIMBY Law challenged Campbell after the city’s draft ordinance stated that homes built under SB 9 would be limited to 1,200 square feet. The council ultimately removed the restriction after YIMBY Law threatened legal action and alerted the California Department of Housing and Community Development.
“I think Cupertino said they were going to do everything they can to undermine the law, they didn’t break as many laws as Los Altos Hills did in trying to undermine SB9, but they are well on their way,” Sonnefeld said. “We believe that when the state guidance comes out on this, that it’s likely to reinforce our opinion and Cupertino is going to be having to change this ordinance in the very near future anyway because the state is going to require it of them.”
But the city insists it’s complying with all state laws. In a prepared statement, City Attorney Chris Jensen said that only a small number of parcels in the city will be impacted by the 2,000 square foot restriction and that a property owner could still “develop four 2,000 square foot units on a lot where only a single family home would previously have been allowed, which could accompany more than a dozen residents and would not be considered downzoning by any means.”
“The misunderstanding on the 2,000 square foot limit is particularly unfortunate given the work Cupertino has done to implement SB 9 to accommodate the additional density that the statute allows in a manner that has a high degree of community support,” Jensen added.
Aside from size limitations, Cupertino will ban accessory dwelling units on subdivided lots, second-story balconies and basements.
The city is requiring that the shadow from new homes not cover more than 10 percent of an existing solar panel on an adjoining property — a regulation that’s not in place for the construction of new single-family homes. Property owners will have to hire a licensed engineer to conduct a shadow study.
Cupertino will also prohibit condominium conversions so that individual units in duplexes cannot be sold.
“It’s not clear why the city would want to restrict for sale units so that they could only be rented if part of the point of SB 9 is to help lower-income families have access to more housing options,” Sonnenfeld said. “It really just entrenches existing homeownership in Cupertino.”
In six months, the council plans to discuss if they need to make any changes to the ordinance, but Councilmember Jon Robert Willey and Chao have already expressed a desire to put expiration dates on permits and dictate how soon property owners must start construction.
“If we don’t have any type of limit, then essentially all 20,000 homeowners in Cupertino could immediately send their lot split request into the city with no intent of splitting it as long as they’re living in the structure,” Willey said. “But they’re going to sell the property at some point with this advantage for higher prices, further elevating the value of the homes in Cupertino.”
Source: www.mercurynews.com